Judges troubled by Hawaiian school case

An appellate court hears arguments on Kamehameha's policy

By David Kravets
Associated Press

SAN FRANCISCO » Call it illegal racism or call it a helping hand for a downtrodden indigenous population.

That was the issue confronting a 15-judge panel of the 9th U.S. Circuit Court of Appeals as it weighed yesterday whether private Kamehameha Schools could lawfully give admissions preference to native Hawaiians.

9TH CIRCUIT COURT OF APPEALS

Listen to the audio transcript of the June 20 hearing by downloading the 10mb file.

The Kamehameha Schools was established under the 1883 will of Princess Bernice Pauahi Bishop as part of a trust now worth $6.8 billion. Part of the school's mission is to counteract historic disadvantages native Hawaiians face in employment, education and society. The trust subsidizes tuition.

The case, testing racial preference programs in schools, was brought by a Caucasian boy who was denied admission because he was not Hawaiian. A three-judge panel of the 9th Circuit ruled in favor of the boy last year, calling it unlawful race-based discrimination.

But the court agreed to hear the case again with a larger panel of 15 judges.

The judges were all over the map yesterday on whether they would uphold the three-judge decision. After an hour of oral arguments, the court did not indicate when it would rule.

Judge Alex Kozinski wasn't so sure whether the school's admission policy was good public policy, despite its goal of reversing the economic and educational plight of Hawaiians and helping to remedy some of the wrongs done during the U.S.-backed overthrow of the Hawaiian kingdom in 1893.

"What's so great about having a school where everybody you meet is just like you?" he asked.

Judge Pamela Rymer added that the policy "assumes that it is a legitimate purpose to remedy society's wrongs."

Judge Harry Pregerson said the policy sounded OK because it was aimed at righting a social wrong.

The last time the U.S. Supreme Court ruled on a similar issue was in 2003, when the justices banned the use of rigid formulas that award points based on race for admission to the University of Michigan's undergraduate program and law school. But the court that same year also permitted colleges to consider race as part of a "holistic review" of every application.

But the case before the 9th Circuit considers a unique set of circumstances: a private school, which does not receive any federal funding, allowing only indigenous Hawaiians.

Those facts prompted at least two judges to wonder aloud whether they could simply dismiss the case, because the plaintiff, now 18, already has graduated from another high school.

A ruling in the boy's favor would force the school to change its practices.

Sullivan suggested that the Kamehameha Schools was being unfairly singled out, and noted that Alaskan natives and American Indians enjoy benefits based on their indigenous status, and Hawaiians should be on equal footing.

Several judges, however, noted that Congress tabled legislation toward that end earlier this month.

Admission to the elite school is first granted to all qualified Hawaiian students, and non-Hawaiians may be admitted if there are openings left. Only one in eight eligible applicants gets in.

There are roughly 5,400 students enrolled at the school's three K-12 campuses.

Sullivan argued that the admissions policy should be permitted to comply with the wishes of the princess' will.

Eric Grant, the attorney for the boy who could not enroll, maintained that the policy is illegal.

Following the appeals court's ruling against the school last fall, an estimated 15,000 people marched through downtown Honolulu in protest.

The state Attorney General's Office is supporting the school's admissions practices, which will remain in place pending a resolution of the case.